The fact the justices asked interested parties to submit briefs on the matter last month is noteworthy, say legal representatives on both sides, not because the court cares about tobacco use regulations, but whether health departments in general have the right to pass codes which supersede state law.

“You have a right to go to the court of appeals. You do not have a right to go to the Supreme Court,” said Sam Frederick, a Lansing attorney representing five local plaintiffs in the case. “They (justices) said they would like to hear more about this issue of improper delegation of authority.”

He added, “Health departments can enact these types (Charlevoix’s Clean Indoor Air Act) of laws, but the question is: ‘Are they delegated too much power from the state legislature?’”

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The Supreme Court’s curiosity stems from the case filed by Kent McNeil, Franklin Fisher and Roger “Archie” Griffin in July 2005, and which later added plaintiffs Scott Way and Jeff Legato, but not because of any arguments raised by the plaintiffs.

Regardless of which course the Supreme Court chooses, some Charlevoix County Commissioners intend to bring the matter up for a vote once again.

“We’re taking a hard and fast look at all the rules that apply to private citizens,” said District Two Charlevoix County Commissioner and Chairman of the Board Chris Christensen. “Micromanagement is what we’re trying to avoid.”

He added, “This should be on the agenda for the next meeting (7 p.m., Wednesday, Feb. 27).”

The plaintiffs, who originally lost their case in Charlevoix Circuit Court, lost again in state appeals court last June, but then, last month, the Michigan Supreme Court asked the plaintiffs, defendants, the Michigan Attorney General’s office, the Michigan Association of Counties and the Michigan Township Association.

“The Supreme Court, on its own initiative, asked the parties … to file supplemental briefs on whether the public health code contains sufficient guidelines for the delegation of rule making authority by the legislature to state agencies,” said Jim Young, attorney for the Northwest Michigan Community Heath Agency. “This principle applies to any health department regulation whether it relates to septic systems, tattoo parlors, wells, it literally has nothing to do at all with the fact that we’re regulating tobacco.”

As all briefs in the matter have been filed with the high court, the defendants and plaintiffs now must wait for the justices to decide one of several possible scenarios including: Choosing not to hear the case; choosing to hear oral arguments on the case; or giving a decision based on the supplemental briefs.

“They were invited to do that because of the tremendous statewide impact that an adverse ruling would have,” Young said. “If that happened I would expect the legislature to pass emergency legislation to try to bring order out of potential chaos.”

He added, “On the other hand, if the legislature drafted the statute poorly then the legislature should be told. I don’t have a problem with them looking at the issue.”

The significance of the court ruling against the health department “is, if the Supreme Court finds that the public health code is defective and health departments should be treated as state agencies, then the very ordinances passed by health departments in this entire state would be invalid,” Young said.

He added, “This would create chaos.”

The argument laid out in Frederick’s brief is that, while local health departments have a right to pass laws more stringent than state law, they may not pass laws which override different laws and that the appeals court erred by ruling the Northwest Michigan Community Health Agency did not have an improper delegation of authority from the legislature.

“What I would like to see is the court grant oral argument on the issue. This is an issue of public concern, not just for Charlevoix County, but all counties in the State of Michigan, and I think it serves the public to have discourse from both sides,” Frederick said. “Hopefully the court would issue decisions, opinions that would acknowledge there is improper use of power at the local health department level.”

Both attorneys said the Supreme Court operates on its own timeline and therefore a decision will be forthcoming at an indeterminable date.